March 26, 2019
FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF NORTH CAROLINA No. 18-422.
and other plaintiffs in North Carolina and Maryland filed
suits challenging their States' congressional districting
maps as unconstitutional partisan gerrymanders. The North
Carolina plaintiffs claimed that the State's districting
plan discriminated against Democrats, while the Maryland
plaintiffs claimed that their State's plan discriminated
against Republicans. The plaintiffs alleged violations of the
First Amendment, the Equal Protection Clause of the
Fourteenth Amendment, the Elections Clause, and Article I,
§2. The District Courts in both cases ruled in favor of
the plaintiffs, and the defendants appealed directly to this
Partisan gerrymandering claims present political questions
beyond the reach of the federal courts. Pp. 6-34.
(a) In these cases, the Court is asked to decide an important
question of constitutional law. Before it does so, the Court
"must find that the question is presented in a
'case' or 'controversy' that is ... 'of a
Judiciary Nature.'" Daimler Chrysler Corp. v.
Cuno, 547 U.S. 332, 342. While it is "the province
and duty of the judicial department to say what the law
is," Marbury v. Madison, 1 Cranch 137, 177,
sometimes the law is that the Judiciary cannot entertain a
claim because it presents a nonjusticiable "political
question," Baker v. Carr, 369 U.S. 186, 217.
Among the political question cases this Court has identified
are those that lack "judicially discoverable and
manageable standards for resolving [them]."
Ibid. This Court's partisan gerrymandering cases
have left unresolved the question whether such claims are
claims of legal right, resolvable according to
legal principies, or political questions that must
find their resolution elsewhere. See Gill v.
Whitford, 585 U.S.___, ___.
Partisan gerrymandering was known in the Colonies prior to
Independence, and the Framers were familiar with it at the
time of the drafting and ratification of the Constitution.
They addressed the election of Representatives to Congress in
the Elections Clause, Art. I, §4, cl. 1, assigning to
state legislatures the power to prescribe the "Times,
Places and Manner of holding Elections" for Members of
Congress, while giving Congress the power to "make or
alter" any such regulations. Congress has regularly
exercised its Elections Clause power, including to address
partisan gerrymandering. But the Framers did not set aside
all electoral issues as questions that only Congress can
resolve. In two areas-one-person, one-vote and racial
gerrymandering-this Court has held that there is a role for
the courts with respect to at least some issues that could
arise from a State's drawing of congressional districts.
But the history of partisan gerrymandering is not irrelevant.
Aware of electoral districting problems, the Framers chose a
characteristic approach, assigning the issue to the state
legislatures, expressly checked and balanced by the Federal
Congress, with no suggestion that the federal courts had a
role to play.
Courts have nonetheless been called upon to resolve a variety
of questions surrounding districting. The claim of population
inequality among districts in Baker v. Carr, for
example, could be decided under basic equal protection
principles. 369 U.S., at 226. Racial discrimination in
districting also raises constitutional issues that can be
addressed by the federal courts. See Gomillion v.
Lightfoot, 364 U.S. 339, 340. Partisan gerrymandering
claims have proved far more difficult to adjudicate, in part
because "a jurisdiction may engage in constitutional
political gerrymandering." Hunt v. Cromartie,
526 U.S. 541, 551. To hold that legislators cannot take their
partisan interests into account when drawing district lines
would essentially countermand the Framers' decision to
entrust districting to political entities. The "central
problem" is "determining when political
gerrymandering has gone too far." Vieth v.
Jubelirer, 541 U.S. 267, 296 (plurality opinion).
Despite considerable efforts in Gaffney v.
Cum-mings, 412 U.S. 735, 753; Davis v.
Bandemer, 478 U.S. 109, 116-117; Vieth, 541
U.S., at 272-273; and League of United Latin American
Citizens v. Perry, 548 U.S. 399, 414 (LULAC),
this Court's prior cases have left "unresolved
whether . . . claims [of legal right] may be brought in cases
involving allegations of partisan gerrymandering,"
Gill, 585 U.S., at . Two "threshold
questions" remained: standing, which was addressed in
Gill, and "whether [such] claims are
justiciable." Ibid. Pp. 6-14.
(b)Any standard for resolving partisan gerrymandering claims
must be grounded in a "limited and precise
rationale" and be "clear, manageable, and
politically neutral." Vieth, 541 U.S., at
306-308 (Kennedy, J., concurring in judgment). The question
is one of degree: How to "provid[e] a standard for
deciding how much partisan dominance is too much."
LULAC, 548 U.S., at 420 (opinion of Kennedy, J.).
Partisan gerrymandering claims rest on an instinct that
groups with a certain level of political support should enjoy
a commensurate level of political power and influence. Such
claims invariably sound in a desire for proportional
representation, but the Constitution does not require
proportional representation, and federal courts are neither
equipped nor authorized to apportion political power as a
matter of fairness. It is not even clear what fairness looks
like in this context. It may mean achieving a greater number
of competitive districts by undoing packing and cracking so
that supporters of the disadvantaged party have a better shot
at electing their preferred candidates. But it could mean
engaging in cracking and packing to ensure each party its
"appropriate" share of "safe" seats. Or
perhaps it should be measured by adherence to
"traditional" districting criteria. Deciding among
those different visions of fairness poses basic questions
that are political, not legal. There are no legal standards
discernible in the Constitution for making such judgments.
And it is only after determining how to define fairness that
one can even begin to answer the determinative question:
"How much is too much?"
The fact that the Court can adjudicate one-person, one-vote
claims does not mean that partisan gerrymandering claims are
justiciable. This Court's one-person, one-vote cases
recognize that each person is entitled to an equal say in the
election of representatives. It hardly follows from that
principle that a person is entitled to have his political
party achieve representation commensurate to its share of
statewide support. Vote dilution in the one-person, one-vote
cases refers to the idea that each vote must carry equal
weight. That requirement does not extend to political
parties; it does not mean that each party must be influential
in proportion to the number of its supporters. The racial
gerrymandering cases are also inapposite: They call for the
elimination of a racial classification, but a partisan
gerrymandering claim cannot ask for the elimination of
partisanship. Pp. 15-21.
(c) None of the proposed "tests" for evaluating
partisan gerrymandering claims meets the need for a limited
and precise standard that is judicially discernible and
manageable. Pp. 22-30.
(1) The Common Cause District Court concluded that
all but one of the districts in North Carolina's 2016
Plan violated the Equal Protection Clause by intentionally
diluting the voting strength of Demo- crats. It applied a
three-part test, examining intent, effects, and causation.
The District Court's "predominant intent" prong
is borrowed from the test used in racial gerrymandering
cases. However, unlike race-based decisionmaking, which is
"inherently suspect," Miller v. Johnson,
515 U.S. 900, 915, districting for some level of partisan
advantage is not unconstitutional. Determining that lines
were drawn on the basis of partisanship does not indicate
that districting was constitutionally impermissible. The
Common Cause District Court also required the
plaintiffs to show that vote dilution is "likely to
persist" to such a degree that the elected
representatives will feel free to ignore the concerns of the
supporters of the minority party. Experience proves that
accurately predicting electoral outcomes is not simple, and
asking judges to predict how a particular districting map
will perform in future elections risks basing constitutional
holdings on unstable ground outside judicial expertise. The
District Court's third prong-which gave the defendants an
opportunity to show that discriminatory effects were due to a
"legitimate redistricting objective"-just restates
the question asked at the "predominant intent"
prong. Pp. 22-25.
(2)The District Courts also found partisan gerrymandering
claims justiciable under the First Amendment, coalescing
around a basic three-part test: proof of intent to burden
individuals based on their voting history or party
affiliation, an actual burden on political speech or
associational rights, and a causal link between the invidious
intent and actual burden. But their analysis offers no
"clear" and "manageable" way of
distinguishing permissible from impermissible partisan
motivation. Pp. 25-27.
(3)Using a State's own districting criteria as a baseline
from which to measure how extreme a partisan gerrymander is
would be indeterminate and arbitrary. Doing so would still
leave open the question of how much political motivation and
effect is too much. Pp. 27-29.
(4)The North Carolina District Court further held that the
2016 Plan violated Article I, §2, and the Elections
Clause, Art. I, §4, cl. 1. But the Vieth
plurality concluded-without objection from any other
Justice-that neither §2 nor §4 "provides a
judicially enforceable limit on the political considerations
that the States and Congress may take into account when
districting." 541 U.S., at 305. Any assertion that
partisan gerrymanders violate the core right of voters to
choose their representatives is an objection more likely
grounded in the Guarantee Clause of Article IV, §4,
which "guarantee[s] to every State in [the] Union a
Republican Form of Government." This Court has several
times concluded that the Guarantee Clause does not provide
the basis for a justiciable claim. See, e.g., Pacific
States Telephone & Telegraph Co. v. Oregon, 223 U.S.
118. Pp. 29-30.
(d) The conclusion that partisan gerrymandering claims are
not justiciable neither condones excessive partisan
gerrymandering nor condemns complaints about districting to
echo into a void. Numerous States are actively addressing the
issue through state constitutional amendments and legislation
placing power to draw electoral districts in the hands of
independent commissions, mandating particular districting
criteria for their mapmakers, or prohibiting drawing district
lines for partisan advantage. The Framers also gave Congress
the power to do something about partisan gerrymandering in
the Elections Clause. That avenue for reform established by
the Framers, and used by Congress in the past, remains open.
318 F.Supp.3d 777 and 348 F.Supp.3d 493, vacated and
ROBERTS, C. J., delivered the opinion of the Court, in which
THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. KAGAN,
J., filed a dissenting opinion, in which GlNSBURG, BREYER,
and SOTOMAYOR, JJ., joined.
ROBERTS CHIEF JUSTICE
and other plaintiffs in North Carolina and Maryland
challenged their States' congressional districting maps
as unconstitutional partisan gerrymanders. The North Carolina
plaintiffs complained that the State's districting plan
discriminated against Democrats; the Maryland plaintiffs
complained that their State's plan discriminated against
Republicans. The plaintiffs alleged that the gerrymandering
violated the First Amendment, the Equal Protection Clause of
the Fourteenth Amendment, the Elections Clause, and Article
I, §2, of the Constitution. The District Courts in both
cases ruled in favor of the plaintiffs, and the defendants
appealed directly to this Court.
cases require us to consider once again whether claims of
excessive partisanship in districting are
"justiciable"-that is, properly suited for
resolution by the federal courts. This Court has not
previously struck down a districting plan as an
unconstitutional partisan gerrymander, and has struggled
without success over the past several decades to discern
judicially manageable standards for deciding such claims. The
districting plans at issue here are highly partisan, by any
measure. The question is whether the courts below
appropriately exercised judicial power when they found them
unconstitutional as well.
first case involves a challenge to the congressional
redistricting plan enacted by the Republican-controlled North
Carolina General Assembly in 2016. Rucho v. Common
Cause, No. 18-422. The Republican legislators leading
the redistricting effort instructed their mapmaker to use
political data to draw a map that would produce a
congressional delegation of ten Republicans and three
Democrats. 318 F.Supp.3d 777, 807-808 (MDNC 2018). As one of
the two Republicans chairing the redistricting committee
stated, "I think electing Republicans is better than
electing Democrats. So I drew this map to help foster what I
think is better for the country." Id., at 809.
He further explained that the map was drawn with the aim of
electing ten Republicans and three Democrats because he did
"not believe it [would be] possible to draw a map with
11 Republicans and 2 Democrats." Id., at 808.
One Democratic state senator objected that entrenching the
10-3 advantage for Republicans was not "fair,
reasonable, [or] balanced" because, as recently as 2012,
"Democratic congressional candidates had received more
votes on a statewide basis than Republican candidates."
Ibid. The General Assembly was not swayed by that
objection and approved the 2016 Plan by a party-line vote.
Id., at 809.
November 2016, North Carolina conducted congressional
elections using the 2016 Plan, and Republican candidates won
10 of the 13 congressional districts. Id., at 810.
In the 2018 elections, Republican candidates won nine
congressional districts, while Democratic candidates won
three. The Republican candidate narrowly prevailed in the
remaining district, but the State Board of Elections called a
new election after allegations of fraud.
litigation began in August 2016, when the North Carolina
Democratic Party, Common Cause (a nonprofit organization),
and 14 individual North Carolina voters sued the two
lawmakers who had led the redistricting effort and other
state defendants in Federal District Court. Shortly
thereafter, the League of Women Voters of North Carolina and
a dozen additional North Carolina voters filed a similar
complaint. The two cases were consolidated.
plaintiffs challenged the 2016 Plan on multiple
constitutional grounds. First, they alleged that the Plan
violated the Equal Protection Clause of the Fourteenth
Amendment by intentionally diluting the electoral strength of
Democratic voters. Second, they claimed that the Plan
violated their First Amendment rights by retaliating against
supporters of Democratic candidates on the basis of their
political beliefs. Third, they asserted that the Plan usurped
the right of "the People" to elect their preferred
candidates for Congress, in violation of the requirement in
Article I, §2, of the Constitution that Members of the
House of Representatives be chosen "by the People of the
several States." Finally, they alleged that the Plan
violated the Elections Clause by exceeding the State's
delegated authority to prescribe the "Times, Places and
Manner of holding Elections" for Members of Congress.
four-day trial, the three-judge District Court unanimously
concluded that the 2016 Plan violated the Equal Protection
Clause and Article I of the Constitution. The court further
held, with Judge Osteen dissenting, that the Plan violated
the First Amendment. Common Cause v. Rucho, 279
F.Supp.3d 587 (MDNC 2018). The defendants appealed directly
to this Court under 28 U.S.C. §1253.
that appeal was pending, we decided Gill v.
Whit-ford, 585 U.S.___ (2018), a partisan gerrymandering
case out of Wisconsin. In that case, we held that a plaintiff
asserting a partisan gerrymandering claim based on a theory
of vote dilution must establish standing by showing he lives
in an allegedly "cracked" or "packed"
district. Id., at___(slip op., at 17). A
"cracked" district is one in which a party's
supporters are divided among multiple districts, so that they
fall short of a majority in each; a "packed"
district is one in which a party's supporters are highly
concentrated, so they win that district by a large margin,
"wasting" many votes that would improve their
chances in others. Id., at ___-___ (slip
op., at 3-4).
deciding Gill, we remanded the present case for
further consideration by the District Court. 585 U.S.___
(2018). On remand, the District Court again struck down the
2016 Plan. 318 F.Supp.3d 777. It found standing and concluded
that the case was appropriate for judicial resolution. On the
merits, the court found that "the General Assembly's
predominant intent was to discriminate against voters who
supported or were likely to support non-Republican
candidates," and to "entrench Republican
candidates" through widespread cracking and packing of
Democratic voters. Id., at 883-884. The court
rejected the defendants' arguments that the distribution
of Republican and Democratic voters throughout North Carolina
and the interest in protecting incumbents neutrally explained
the 2016 Plan's discriminatory effects. Id., at
896-899. In the end, the District Court held that 12 of the
13 districts constituted partisan gerrymanders that violated
the Equal Protection Clause. Id., at 923.
court also agreed with the plaintiffs that the 2016 Plan
discriminated against them because of their political speech
and association, in violation of the First Amendment.
Id., at 935. Judge Osteen dissented with respect to
that ruling. Id., at 954-955. Finally, the District
Court concluded that the 2016 Plan violated the Elections
Clause and Article I, §2. Id., at 935-941. The
District Court enjoined the State from using the 2016 Plan in
any election after the November 2018 general election.
Id., at 942.
defendants again appealed to this Court, and we postponed
jurisdiction. 586 U.S.___(2019).
second case before us is Lamone v. Benisek, No. 18-
726. In 2011, the Maryland Legislature-dominated by
Democrats-undertook to redraw the lines of that State's
eight congressional districts. The Governor at the time,
Democrat Martin O'Malley, led the process. He appointed a
redistricting committee to help redraw the map, and asked
Congressman Steny Hoyer, who has described himself as a
"serial gerrymanderer," to advise the committee.
348 F.Supp.3d 493, 502 (Md. 2018). The Governor later
testified that his aim was to "use the redistricting
process to change the overall composition of Maryland's
congressional delegation to 7 Democrats and 1 Republican by
flipping" one district. Ibid. "[A]
decision was made to go for the Sixth," ibid.,
which had been held by a Republican for nearly two decades.
To achieve the required equal population among districts,
only about 10, 000 residents needed to be removed from that
district. Id., at 498. The 2011 Plan accomplished
that by moving roughly 360, 000 voters out of the Sixth
District and moving 350, 000 new voters in. Overall, the Plan
reduced the number of registered Republicans in the Sixth
District by about 66, 000 and increased the number of
registered Democrats by about 24, 000. Id., at
499-501. The map was adopted by a party-line vote.
Id., at 506. It was used in the 2012 election and
succeeded in flipping the Sixth District. A Democrat has held
the seat ever since.
November 2013, three Maryland voters filed this lawsuit. They
alleged that the 2011 Plan violated the First Amendment, the
Elections Clause, and Article I, §2, of the
Constitution. After considerable procedural skirmishing and
litigation over preliminary relief, the District Court
entered summary judgment for the plaintiffs. 348 F.Supp.3d
493. It concluded that the plaintiffs' claims were
justiciable, and that the Plan violated the First Amendment
by diminishing their "ability to elect their candidate
of choice" because of their party affiliation and voting
history, and by burdening their associational rights.
Id., at 498. On the latter point, the court relied
upon findings that Republicans in the Sixth District
"were burdened in fundraising, attracting volunteers,
campaigning, and generating interest in voting in an
atmosphere of general confusion and apathy."
Id., at 524.
District Court permanently enjoined the State from using the
2011 Plan and ordered it to promptly adopt a new plan for the
2020 election. Id., at 525. The defendants appealed
directly to this Court under 28 U.S.C. §1253. We
postponed jurisdiction. 586 U.S. (2019).
III of the Constitution limits federal courts to deciding
"Cases" and "Controversies." We have
understood that limitation to mean that federal courts can
address only questions "historically viewed as capable
of resolution through the judicial process." Flast
v. Cohen, 392 U.S. 83, 95 (1968). In these cases we are
asked to decide an important question of constitutional law.
"But before we do so, we must find that the question is
presented in a 'case' or 'controversy' that
is, in James Madison's words, 'of a Judiciary
Nature.'" Daimler Chrysler Corp. v. Cuno,
547 U.S. 332, 342 (2006) (quoting 2 Records of the Federal
Convention of 1787, p. 430 (M. Farrand ed. 1966)).
Justice Marshall famously wrote that it is "the province
and duty of the judicial department to say what the law
is." Marbury v. Madison, 1 Cranch 137, 177
(1803). Sometimes, however, "the law is that the
judicial department has no business entertaining the claim of
unlawfulness-because the question is entrusted to one of the
political branches or involves no judicially enforceable
rights." Vieth v. Jubelirer, 541 U.S. 267, 277
(2004) (plurality opinion). In such a case the claim is said
to present a "political question" and to be
nonjusticiable-outside the courts' competence and
therefore beyond the courts' jurisdiction. Baker v.
Carr, 369 U.S. 186, 217 (1962). Among the political
question cases the Court has identified are those that lack
"judicially discoverable and manageable standards for
resolving [them]." Ibid.
Term in Gill v. Whitford, we reviewed our partisan
gerrymandering cases and concluded that those cases
"leave unresolved whether such claims may be
brought." 585 U.S., at___(slip op., at 13). This
Court's authority to act, as we said in Gill, is
"grounded in and limited by the necessity of resolving,
according to legal principles, a plaintiff's particular
claim of legal right." Ibid. The question here
is whether there is an "appropriate role for the Federal
Judiciary" in remedying the problem of partisan
gerrymandering-whether such claims are claims of
legal right, resolvable according to legal
principles, or political questions that must find their
resolution elsewhere. Id., at___(slip op., at 8).
gerrymandering is nothing new. Nor is frustration with it.
The practice was known in the Colonies prior to Independence,
and the Framers were familiar with it at the time of the
drafting and ratification of the Constitution. See
Vieth, 541 U.S., at 274 (plurality opinion). During
the very first congressional elections, George Washington and
his Federalist allies accused Patrick Henry of trying to
gerrymander Virginia's districts against their
candidates-in particular James Madison, who ultimately
prevailed over fellow future President James Monroe. Hunter,
The First Gerrymander? 9 Early Am. Studies 792-794, 811
(2011). See 5 Writings of Thomas Jefferson 71 (P. Ford ed.
1895) (Letter to W. Short (Feb. 9, 1789)) ("Henry has so
modelled the districts for representatives as to tack Orange
[county] to counties where he himself has great influence
that Madison may not be elected into the lower federal
1812, Governor of Massachusetts and future Vice President
Elbridge Gerry notoriously approved congressional districts
that the legislature had drawn to aid the
Democratic-Republican Party. The moniker
"gerrymander" was born when an outraged Federalist
newspaper observed that one of the misshapen districts
resembled a salamander. See Vieth, 541 U.S., at 274
(plurality opinion); E. Griffith, The Rise and Development of
the Gerrymander 17-19 (1907). "By 1840, the gerrymander
was a recognized force in party politics and was generally
attempted in all legislation enacted for the formation of
election districts. It was generally conceded that each party
would attempt to gain power which was not proportionate to
its numerical strength." Id., at 123.
Framers addressed the election of Representatives to Congress
in the Elections Clause. Art. I, §4, cl. 1. That
provision assigns to state legislatures the power to
prescribe the "Times, Places and Manner of holding
Elections" for Members of Congress, while giving
Congress the power to "make or alter" any such
regulations. Whether to give that supervisory authority to
the National Government was debated at the Constitutional
Convention. When those opposed to such congressional
oversight moved to strike the relevant language, Madison came
to its defense:
"[T]he State Legislatures will sometimes fail or refuse
to consult the common interest at the expense of their local
coveniency or prejudices. . . . Whenever the State
Legislatures had a favorite measure to carry, they would take
care so to mould their regulations as to favor the candidates
they wished to succeed." 2 Records of the Federal
Convention of 1787, at 240-241.
the subsequent fight for ratification, the provision remained
a subject of debate. Antifederalists predicted that
Congress's power under the Elections Clause would allow
Congress to make itself "omnipotent," setting the
"time" of elections as never or the
"place" in difficult to reach corners of the State.
Federalists responded that, among other justifications, the
revisionary power was necessary to counter state legislatures
set on undermining fair representation, including through
malapportionment. M. Klarman, The Framers' Coup: The
Making of the United States Constitution 340-342 (2016). The
Federalists were, for example, concerned that newly
developing population centers would be deprived of their
proper electoral weight, as some cities had been in Great
Britain. See 6 The Documentary History of the Ratification of
the Constitution: Massachusetts 1278-1279 (J. Kaminski &
G. Saladino eds. 2000).
has regularly exercised its Elections Clause power, including
to address partisan gerrymandering. The Apportionment Act of
1842, which required single- member districts for the first
time, specified that those districts be "composed of
contiguous territory," Act of June 25, 1842, ch. 47, 5
Stat. 491, in "an attempt to forbid the practice of the
gerrymander," Griffith, supra, at 12. Later
statutes added requirements of compactness and equality of
population. Act of Jan. 16, 1901, ch. 93, §3, 31 Stat.
733; Act of Feb. 2, 1872, ch. 11, §2, 17 Stat. 28. (Only
the single member district requirement remains in place
today. 2 U.S.C. §2c.) See Vieth, 541 U.S., at
276 (plurality opinion). Congress also used its Elections
Clause power in 1870, enacting the first comprehensive
federal statute dealing with elections as a way to enforce
the Fifteenth Amendment. Force Act of 1870, ch. 114, 16 Stat.
140. Starting in the 1950s, Congress enacted a series of laws
to protect the right to vote through measures such as the
suspension of literacy tests and the prohibition of
English-only elections. See, e.g., 52 U.S.C.
§10101 et seq.
suggest that, through the Elections Clause, the Framers set
aside electoral issues such as the one before us as questions
that only Congress can resolve. See Baker, 369 U.S.,
at 217. We do not agree. In two areas- one-person, one-vote
and racial gerrymandering-our cases have held that there is a
role for the courts with respect to at least some issues that
could arise from a State's drawing of congressional
districts. See Wesberry v. Sanders, 376 U.S. 1
(1964); Shaw v. Reno, 509 U.S. 630 (1993) (Shaw
history is not irrelevant. The Framers were aware of
electoral districting problems and considered what to do
about them. They settled on a characteristic approach,
assigning the issue to the state legislatures, expressly
checked and balanced by the Federal Congress. As Alexander
Hamilton explained, "it will . . . not be denied that a
discretionary power over elections ought to exist somewhere.
It will, I presume, be as readily conceded that there were
only three ways in which this power could have been
reasonably modified and disposed: that it must either have
been lodged wholly in the national legislature, or wholly in
the State legislatures, or primarily in the latter, and
ultimately in the former." The Federalist No. 59, p. 362
(C. Rossiter ed. 1961). At no point was there a suggestion
that the federal courts had a role to play. Nor was there any
indication that the Framers had ever heard of courts doing
such a thing.
have nevertheless been called upon to resolve a variety of
questions surrounding districting. Early on, doubts were
raised about the competence of the federal courts to resolve
those questions. See Wood v. Broom, 287 U.S. 1
(1932); Colegrove v. Green, 328 U.S. 549 (1946).
leading case of Baker v. Carr, voters in Tennessee
complained that the State's districting plan for state
representatives "debase[d]" their votes, because
the plan was predicated on a 60-year-old census that no
longer reflected the distribution of population in the State.
The plaintiffs argued that votes of people in overpopulated
districts held less value than those of people in
less-populated districts, and that this inequality violated
the Equal Protection Clause of the Fourteenth Amendment. The
District Court dismissed the action on the ground that the
claim was not justiciable, relying on this Court's
precedents, including Colegrove. Baker v. Carr, 179
F.Supp. 824, 825, 826 (MD Tenn. 1959). This Court reversed.
It identified various considerations relevant to determining
whether a claim is a nonjusticiable political question,
including whether there is "a lack of judicially
discoverable and manageable standards for resolving it."
369 U.S., at 217. The Court concluded that the claim of
population inequality among districts did not fall into that
category, because such a claim could be decided under basic
equal protection principles. Id., at 226. In
Wesberry v. Sanders, the Court extended its ruling
to malapportionment of congressional districts, holding that
Article I, §2, required that "one man's vote in
a congressional election is to be worth as much as
another's." 376 U.S., at 8.
line of challenges to districting plans has focused on race.
Laws that explicitly discriminate on the basis of race, as
well as those that are race neutral on their face but are
unexplainable on grounds other than race, are of course
presumptively invalid. The Court applied those principles to
electoral boundaries in Gomil-lion v. Lightfoot,
concluding that a challenge to an "uncouth twenty-eight
sided" municipal boundary line that excluded black
voters from city elections stated a constitutional claim. 364
U.S. 339, 340 (1960). In Wright v. Rockefeller, 376
U.S. 52 (1964), the Court extended the reasoning of
Gomillion to congressional districting. See Shaw
I, 509 U.S., at 645.
gerrymandering claims have proved far more difficult to
adjudicate. The basic reason is that, while it is illegal for
a jurisdiction to depart from the one-person, one-vote rule,
or to engage in racial discrimination in districting, "a
jurisdiction may engage in constitutional political
gerrymandering." Hunt v. Cromartie, 526 U.S.
541, 551 (1999) (citing Bush v. Vera, 517 U.S. 952,
968 (1996); Shaw v. Hunt, 517 U.S. 899, 905 (1996)
(Shaw II); Miller v. Johnson, 515 U.S. 900, 916
(1995); Shaw I, 509 U.S., at 646). See also
Gaffney v. Cummings, 412 U.S. 735, 753 (1973)
(recognizing that "[p]olitics and political
considerations are inseparable from districting and
that legislators cannot take partisan interests into account
when drawing district lines would essentially countermand the
Framers' decision to entrust districting to political
entities. The "central problem" is not determining
whether a jurisdiction has engaged in partisan
gerrymandering. It is "determining when political gerry-
mandering has gone too far." Vieth, 541 U.S.,
at 296 (plurality opinion). See League of United Latin
American Citizens v. Perry, 548 U.S. 399, 420 (2006)
(LULAQ (opinion of Kennedy, J.) (difficulty is
"providing a standard for deciding how much partisan
dominance is too much").
first considered a partisan gerrymandering claim in
Gaffney v. Cummings in 1973. There we rejected an
equal protection challenge to Connecticut's redistricting
plan, which "aimed at a rough scheme of proportional
representation of the two major political parties" by
"wiggl[ing] and joggl[ing] boundary lines" to
create the appropriate number of safe seats for each party.
412 U.S., at 738, 752, n. 18 (internal quotation marks
omitted). In upholding the State's plan, we reasoned that
districting "inevitably has and is intended to have
substantial political consequences." Id., at
years later, in Davis v. Bandemer, we addressed a
claim that Indiana Republicans had cracked and packed
Democrats in violation of the Equal Protection Clause. 478
U.S. 109, 116-117 (1986) (plurality opinion). A majority of
the Court agreed that the case was justiciable, but the Court
splintered over the proper standard to apply. Four Justices
would have required proof of "intentional discrimination
against an identifiable political group and an actual
discriminatory effect on that group." Id., at
127. Two Justices would have focused on "whether the
boundaries of the voting districts have been distorted
deliberately and arbitrarily to achieve illegitimate
ends." Id., at 165 (Powell, J., concurring in
part and dissenting in part). Three Justices, meanwhile,
would have held that the Equal Protection Clause simply
"does not supply judicially manageable standards for
resolving purely political gerrymandering claims."
Id., at 147 (O'Connor, J., concurring in
judgment). At the end of the day, there was "no
'Court' for a standard that properly should be
applied in determining whether a challenged redistricting
plan is an unconstitutional partisan political
gerrymander." Id., at 185, n. 25 (opinion of
Powell, J.). In any event, the Court held that the plaintiffs
had failed to show that the plan violated the Constitution.
years later, in Vieth, the plaintiffs complained
that Pennsylvania's legislature "ignored all
traditional redistricting criteria, including the
preservation of local government boundaries," in order
to benefit Republican congressional candidates. 541 U.S., at
272-273 (plurality opinion) (brackets omitted). Justice
Scalia wrote for a four-Justice plurality. He would have held
that the plaintiffs' claims were nonjusticiable because
there was no "judicially discernible and manageable
standard" for deciding them. Id., at 306.
Justice Kennedy, concurring in the judgment, noted "the
lack of comprehensive and neutral principles for drawing
electoral boundaries [and] the absence of rules to limit and
confine judicial intervention." Id., at
306-307. He nonetheless left open the possibility that
"in another case a standard might emerge."
Id., at 312. Four Justices dissented.
LULAC, the plaintiffs challenged a mid-decade
redistricting map approved by the Texas Legislature. Once
again a majority of the Court could not find a justiciable
standard for resolving the plaintiffs' partisan
gerrymandering claims. See 548 U.S., at 414 (noting that the
"disagreement over what ...